I suggest everyone who wants to live in a gay-free, abortion-free zone should move to Mississippi by 2020.

Man, this almost makes me want to hope that it isn't legalized nationwide!

Anyways...

* Jon Tester (Senator, Montana) announced today that he now supports Gay Marriage
* Mark Begich (Senator, Alaska) announced today that he now supports Gay Marriage
* Jay Rockefeller (Senator, West Virginia) announced today that he thinks DOMA is unconstitutional, despite sponsoring it in the 1990's, and supports Gay Marriage as policy* 64% of New Jersey residents now support legalizing Gay Marriage (it was only 52% in January 2012)
* FOX News host Megyn Kelly says banning Gay Marriage is wrong, just like banning Interracial Marriage was
* Only 10 Democratic Senators still don't support Gay Marriage (though some of them support Civil Unions, and their number is dwindling by the day, literally)

Turns out is was slightly light-hearted. I pulled the original quote from Andrew Sullivan, but the person he linked to cut out some of the other lines. Here's the entire exchange:

JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future. We — we decide what the law is. I’m curious, when - when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. (Laughter.)

And for anyone to predict that gay marriage is in danger because Scalia asked this question is ridiculous. Scalia's argument over the ACA was that if you can mandate insurance, you can mandate someone eat broccoli. And we saw how that case was decided.

The problematic part actually came after that in the transcript:

JUSTICE SCALIA: I’m curious, when - when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became unconstitutional? Has it always been unconstitutional? . . .

MR. OLSON: It was constitutional when we -as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

Olson really didn't give a very good answer to the actual question asked, and the follow up really demonstrated that.

That's the thing, though, is the question brought up of where the line is? Just because something is taboo doesn't make it something that shouldn't be allowed, just as the taboo (albeit weaker) with same-sex marriage is any justification to prevent that, either. There is a very good reason that polygamy and incest both come up in this discussion (although too often, it's because people are trying to use one prejudice to reinforce another)

It is, incidentally, somewhat fun to have protesters opposed to same-sex marriage ask if incest or polygamy should be allowed and answer yes. They don't expect that.

Personally, I think siblings should be allowed to marry, but also that conceiving a child between siblings or first cousins should be a criminal offense. As long as we criminalize procreation between siblings, I don't see a problem with permitting marriage between them. Siblings would have many of the same options for raising children that same sex couples often choose: adoption, surrogacy, sperm donors.

Re the oral argument, in my experience, every same sex couple I know in a committed relationship is in it in part for the express purpose of raising children.

That's the thing, though, is the question brought up of where the line is? Just because something is taboo doesn't make it something that shouldn't be allowed, just as the taboo (albeit weaker) with same-sex marriage is any justification to prevent that, either. There is a very good reason that polygamy and incest both come up in this discussion (although too often, it's because people are trying to use one prejudice to reinforce another)

It is, incidentally, somewhat fun to have protesters opposed to same-sex marriage ask if incest or polygamy should be allowed and answer yes. They don't expect that.

Personally, I think siblings should be allowed to marry, but also that conceiving a child between siblings or first cousins should be a criminal offense. As long as we criminalize procreation between siblings, I don't see a problem with permitting marriage between them. Siblings would have many of the same options for raising children that same sex couples often choose: adoption, surrogacy, sperm donors.

Re the oral argument, in my experience, every same sex couple I know in a committed relationship is in it in part for the express purpose of raising children.

That's abhorrent.

Should people who are carriers for the same genetic disease be forbidden from procreating?

You and I and the government do not get to decide who does or who does not procreate. That is a dangerous and scary precedent.

Yeah, I actually think Olson gave a well-reasoned answer. Our society is of a constantly evolving nature, where new social norms become acceptable. Scalia's question also presumes that any challenge concerning the constitutionality of a civil rights issue has to have a specific start date, where it would be equally as hard to provide an answer for cases like Lawrence v Texas, Roe v Wade, etc etc etc etc.

I also don't really take Scalia's hypothetical questions seriously. At least this one was better than "can you mandate someone to eat broccoli" and "if we can't deem homosexuality immoral, can we still deem murder immoral?" and "sodomy for gays should be illegal, but I should still be able to sodomize my wife".

Scalia is a strict-constructionist so I can't take much of anything he says seriously.

Scalia's a strict constructionalist when it suits him.

And his whole originalism thing about the EPC is ridiculous. But then I'm pretty sure he only supports Craig v. Boren out of stare decisis, and would argue that gender was *never* under consideration when the 14th was ratified.

Standards change. The meaning of constitutional provisions change. Just look at flippin' Lochner.

edit: and frankly, Scalia got schooled in that exchange. Not only did he fall into Olson's trap, but he was baited into answering counsel's question in the first place. It's not going to change his opinion one bit, but in terms of oral argument, Olson definitely got the best of him.

edit: and frankly, Scalia got schooled in that exchange. Not only did he fall into Olson's trap, but he was baited into answering counsel's question in the first place. It's not going to change his opinion one bit, but in terms of oral argument, Olson definitely got the best of him.

Except that Olson isn't one of the people who will be rendering the decision and writing the opinion of the Court. Scalia is going to be part of making the decision, and there's a fair chance that he might write the Court's opinion. It's rarely a good idea to try and entrap one of the judges who will be ruling on your case, unless you are sure that you can win without their vote(s).

Scalia, Thomas, and Alito all place a fairly strong emphasis on original intent or original public meaning. Roberts and Kennedy also have a history of accepting such arguments. Olson's answer wasn't very good for purposes of encouraging a ruling following the reasoning behind the question.

Scalia -- given his dissents in Lawrence and Romer -- is not going to be a winnable vote, in any circumstance. Thomas and Alito are originalists, but have a decent amount of respect for stare decisis, and I'd argue that the application of gender to the EPC is basically the way to go. They are very sensitive to historical arguments, which is why it's relevant, but I don't think that they're as inflexible as Scalia on the issue (who has decided personal views).

Kind of not surprised by the radio silence of the GOP/Tea Party. Even if it's being fought at the Supreme Court, I would suspect a lot of the GOP realize which way the wind is blowing on this issue.

The closest I've heard is Hannity claiming liberal media bia/conspiracy that everybody is talking about this instead of how the economy is still in ruins because Obama.

It's funny because Fox News has being going on and on since the Sequester started about how much money the White House is spending on 'frivilous' things (including the freaking Secret Service - yes, they called the agency that protects the President 'frivilous'), and yet, I heard this morning that the GOP House is spending something upwards of $3 million of taxpayer money to defend DOMA.

Scalia -- given his dissents in Lawrence and Romer -- is not going to be a winnable vote, in any circumstance. Thomas and Alito are originalists, but have a decent amount of respect for stare decisis, and I'd argue that the application of gender to the EPC is basically the way to go. They are very sensitive to historical arguments, which is why it's relevant, but I don't think that they're as inflexible as Scalia on the issue (who has decided personal views).

At the same time, both Kennedy and Roberts are not likely to be won over by a "values have changed" argument, especially if it's likely to be overturned through the legislative process in the next few years. Based on comments both have made in interviews, I would guess that they are more likely to let history take its natural course, rather than try to force it to go where it's already headed. Previous times that the Court has tried to force things along have led to serious issues down the road. (And, for all of the attempts to claim otherwise, this isn't a case like Brown where it's necessary to force a change. There are already signs that Prop 8 would be overturned if placed on the ballot today, and DOMA has a good chance of being repealed in the next few years as well.)

A few weeks ago, I read a pretty good analysis of the 5 options that the Court has for how to rule. Of the options listed, I predict that they will either uphold Prop 8, or they will narrowly limit their ruling to California only. They aren't going to dismiss on standing, because it would effectively neuter the initiative process (allowing government officials to provide a weak defense to a law they didn't want but the people did, and then refusing to appeal it). I also don't see them going for a "50-state solution", as that would have the potential to cause a lasting backlash (much like Roe v. Wade did).

As for the DOMA case today, I predict that DOMA Section 3 will be upheld, because Congress has the power to define the terms used in its own laws, and has no obligation to rely on how a state might define the same term. (For example, the federal definition of "transfer" as it relates to firearms only covers a change of ownership. In some states, such as New York, it also covers something as simple as letting someone else try your gun at the range. Federal law can define the term differently from state law with no problems.)

Honestly, I think that the government should be defending its laws or changing them, not trying to do a weird middle ground, as I think that somewhat undercuts the democratic process. So, I somewhat agree on that.

I'm hearing some stuff that the more conservative judges are questioning if the federal government even has the authority to get involved with marriage in the way that DOMA did, removing it from the states. I'm personally hoping that, if it is a possible thing, that could mean that the entirety of DOMA is swept out in one fell swoop. I'm not entirely sure if that's possible though, as well everyone is talking about DOMA being challenged, the other day someone had said that the Supreme Court can only address Section 3 of DOMA, but not Section 2.

I'm hearing some stuff that the more conservative judges are questioning if the federal government even has the authority to get involved with marriage in the way that DOMA did, removing it from the states.

I've seen some of those talking points, but I don't find them very persuasive. DOMA Section 3 merely defined the term "marriage" for purposes of federal law. Just because "marriage" itself has usually been the domain of the states doesn't mean that the federal government is bound to recognize each state's definition of what a marriage is. (To use an extreme example, if a state were to define a marriage as the union of a person and a ham sandwich it shouldn't then require that the federal government allow the person and the sandwich to file a joint tax return.)

Section 3 has nothing to do with the states, as it only applies to federal law. Individual states are still free to implement same-sex marriage (as they have since DOMA was passed).

In this case, it specifically relates to a federal tax, and the "marriage" was not contracted in the US, but in Canada.

I'm personally hoping that, if it is a possible thing, that could mean that the entirety of DOMA is swept out in one fell swoop. I'm not entirely sure if that's possible though, as well everyone is talking about DOMA being challenged, the other day someone had said that the Supreme Court can only address Section 3 of DOMA, but not Section 2.

The Court can only rule on the issues that are actually before it. As I mentioned above, US v. Windsor (the DOMA case) deals with a matter of federal taxes that would be exempted if the marriage were recognized. As Section 2 deals with one state recognizing a marriage in another state, and the "marriage" in Windsor did not involve any of the states (being contracted in Canada), Section 2 is not before the Court.

Note: I am putting the word "marriage" in quotes as it relates to the Windsor case because it is not currently a recognized marriage under federal law. That is, after all, what the case is about.

My prediction is the Court will uphold Prop 8 and strike down DOMA. I don't see Kennedy upholding DOMA, given his questioning today (which is never a clear indicator) and to a larger extent his precedents.

edit: and frankly, Scalia got schooled in that exchange. Not only did he fall into Olson's trap, but he was baited into answering counsel's question in the first place. It's not going to change his opinion one bit, but in terms of oral argument, Olson definitely got the best of him.

Except that Olson isn't one of the people who will be rendering the decision and writing the opinion of the Court. Scalia is going to be part of making the decision, and there's a fair chance that he might write the Court's opinion. It's rarely a good idea to try and entrap one of the judges who will be ruling on your case, unless you are sure that you can win without their vote(s).

Scalia, Thomas, and Alito all place a fairly strong emphasis on original intent or original public meaning. Roberts and Kennedy also have a history of accepting such arguments. Olson's answer wasn't very good for purposes of encouraging a ruling following the reasoning behind the question.

So what you're saying is that a Supreme Court Justice cannot be swayed by just any well-crafted argument, but that you have to use a particular line of reasoning to possibly persuade them. Additionally, he (or she) will actually be more inclined to decide against because of anger over being out-reasoned...

My prediction is the Court will uphold Prop 8 and strike down DOMA. I don't see Kennedy upholding DOMA, given his questioning today (which is never a clear indicator) and to a larger extent his precedents.

Upholding Prop 8 would be a major error, mostly in light of the massive shift in public opinion since 2008. If Prop 8 was put to voters again, it would lose by a huge margin.

I wish we could have actually seen the proceedings live, but I'm glad we actually have the audio. I know that's a recent development, but I'm glad they've decided to release the audio for this hearing.

My prediction is the Court will uphold Prop 8 and strike down DOMA. I don't see Kennedy upholding DOMA, given his questioning today (which is never a clear indicator) and to a larger extent his precedents.

Upholding Prop 8 would be a major error, mostly in light of the massive shift in public opinion since 2008. If Prop 8 was put to voters again, it would lose by a huge margin.

That doesn't at all follow, imo. That it would lose (not by a huge margin, but it would lose) in California doesn't have anything to do with whether or not Prop 8 should've stayed on the books when it passed in 2008. It's legal validity and its popularity are two distinctly separate things. If all it is is about popularity, then the solution is to have the people of California pass a new and broader definition of marriage.

It's really nice to see that so much has changed in regards to same sex marriage over the past decade. I know 8 or 9 years ago if I tried to have a Marriage Equality conversation on the internet I would probably be laughed off of it.

Kay Hagan (Senator, North Carolina) now supports Gay Marriage too. And she's up for re-election in a year in a Republican-leaning state.
@anakinfansince1983

And that's in addition to all this I posted yesterday:

* Jon Tester (Senator, Montana) announced today that he now supports Gay Marriage
* Mark Begich (Senator, Alaska) announced today that he now supports Gay Marriage
* Jay Rockefeller (Senator, West Virginia) announced today that he thinks DOMA is unconstitutional, despite sponsoring it in the 1990's, and supports Gay Marriage as policy* 64% of New Jersey residents now support legalizing Gay Marriage (it was only 52% in January 2012)
* FOX News host Megyn Kelly says banning Gay Marriage is wrong, just like banning Interracial Marriage was
* Only 10 Democratic Senators still don't support Gay Marriage (though some of them support Civil Unions, and their number is dwindling by the day, literally)

Olson really didn't give a very good answer to the actual question asked, and the follow up really demonstrated that.

As the healthcare debate showed, with Roberts going out of his way to uphold ObamaCare for a reason that the Obama administration wasn't really arguing... it really doesn't matter if he gives a good spontaneous response or not.

edit: and frankly, Scalia got schooled in that exchange. Not only did he fall into Olson's trap, but he was baited into answering counsel's question in the first place. It's not going to change his opinion one bit, but in terms of oral argument, Olson definitely got the best of him.

But Scalia was able to answer Olson's question. Olson was never able to answer Scalia's. Therefore Scalia 1 - Olson 0.